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New Orleans, 2Tth October, 1864. 

To the Hon. Henry Winter Davis, 

House op Representatives, 

Washington City, D. C, 

Dear Sir : 

The letter addressed to Hon . J. 11. Lane, TJ. S. Senator from 
Kansas, which appeared in the New Orleans papers of the 24th 
September last, signed by Major General N. P. Banks, has, no 
doubt, received a full share of your attention. 

The reputation which Gen. Banks brought with him to Louis- 
iana for statesmanship and administrative ability, gives to all he says 
on civil matters, here, a claim to respectful consideration ; while his 
character as a gentleman, repels the idea that he has in any instance, 
or in any degree, in the course of his communication, been led into 
wilful misrepresentation. ITo has, however, in my opinion, fallen into 
some essential errors of fact and law, which, in the most respectful 
manner, as a citizen of Louisiana, it becomes my duty to point out. 

The letter to Senator Lane treats of " the Reconstruction Bill" which 
passed both houses of Congress at the last session : seeks to show 
"its agreement with the new Louisiana Constitution," and enters 
into a defense of the Louisiana elections held under his orders. 

The act of Congress for guaranteeing republican government to the 
States declared to be in insurrection against the United States, was 
inferior in importance to no rneasurethat has ever been considered in 
the national councils. Its immediate relation to th(! rebellion, its 
effectual scheme for permanently removing the curse of slavery, 
together with the e.xalted patriotism and ability of its authors, had 
made a deep and general impression upon the mind of the nation. 



2 Letter op Thomas J. Durant 

The bill was reported to the House of Representatives early in 
April last, was fully debated there, and passed on the 4th of May. 
It was reported to the Senate on the 2tth of May, debated there, and 
finally passed as it came from the House, on the 2d of July. 

On the eighth day of July, the President published his well known 
proclamation with regard to this bill, annexing thereto a copy of the 
act in full. This proclamation was received in New Orleans by the 
19th of July, when the Constitutional Convention elected under Gen- 
eral Orders No. 35, from the Head Quarters of the Department of the 
Gulf, was in session, and we are told " that the proclamation of the 
President, and the protest of the Hon. Messrs. Wade and Davis, 
relating to this measure, attracted general attention here" ; which 
indeed could scarcely have been otherwise, as the bill was an au- 
thoritative condemnation by the only branch of the Government 
invested with power over the subject, by the Constitution, of all that 
the Major General commanding the Department was then engaged in, 
so far as the reorganization of civil government was concerned, though 
until recently, before the 24th of the following September, he had 
" not had an opportunity to examine the bill passed at the late session 
of Congress, providing for the reconstruction of Government in rebel 
States," a period at which examination became supererogatory, as 
the work of the Louisiana Convention had then been submitted to the 
vote of what is called " the people of Louisiana," and proclaimed 
adopted. We are further told that in the mean time " no attention 
was given to the provisions of the bill for reconstruction of govern- 
ment in seceding States, and but little interest was ruanifested in 
legislation on that subject." 

This inattention to a question that was worthy, in itself, of the 
deepest reflection, arose from the fundamental difference of opinion 
which exists between Congress and the President in relation to their 
respective powers over the subject of the reorganization of civil gov- 
ernment in the insurrectionary States. The President pretends to the 
right, in his military character, as commander-in-chief, to organize 
State Governments designed to survive the war, and, in the mean 
time possessing the right to participate in the government of the 
countr}^ by sending Senators and Representatives to Congress, and to 



To Hon, Henry Winter Davis. 3 

cast votes, as States, in the presidential election. This power, the 
Constitution and Courts of the country, have declared does not exist in 
the executive department, but belongs exclusively to Congress. Gen. 
Banks adopts in its fullest extent the presidential idea, saying, " no 
declaration of war can be made without consent of Congress, but once 
waged by its order, it cannot restrict the power of the President as 
commander in chief." Giving this language its full meaning, would place 
the President above all law, and render the deliberations and acts of 
Congress useless in time of war; but limiting the application of the 
language to the subject matter of debate, it plainly means, that when 
the President choses to order a Maj-General to organize a State Gov- 
vernment in a State in insurrection, his power to do so is supreme, 
though exercised against the will of Congress. Such a doctrine is of 
the most dangerous character, and it is to be hoped will not be 
adopted by the Representatives of the Nation. It is not to be sup- 
posed that a reconstruction bill in Congress would attract much of 
the attention of the military department,- when such views of the 
power of the Comuumder-in-Chief were entertained. 

The whole course of proceedings, then, in regard to the reorganiza- 
tion of civil government in Louisiana, must be judged under the 
knowledge, that their managers conscientiously believed that the 
President, in his military capacity, was the sole master of the situa- 
tion, and that his will alone was the law of the case. 

The will of the President, however, is not exclusively relied on, and 
General Banks endeavors to show that his action in "Louisiana 
corresponds completely to the requisition of Congress." 

To this portion of his letter it is necessary to devote some atten- 
tion. An account of what was actually done in Louisiana, so far 
as it can be examined from an outside point of view, will convince 
you that neither the provisions of the act of Congress, nor the 
Constitution and laws of the State of Louisiana, supposing them 
to be in force, were complied with. 

The act of Congress contemplates a civil organization : what was 
done here is purely military. The first section of the act of Congress 
directs the appointment by the President of a provisional Governor 
by and with the advice and consent of the Senate. The provisional 
Governor of the State of Louisiana, Mr. Hahn, Avas appointed by the 



4 Letter of Thomas J. Dueant 

Presicleut alone and in his military capacity, and as far as the letter 
of appointment shows, without the concurrence of any member of 
his cabinet. 

The second section of the act provides that the reorganization of 
the state government shall commence only when " the military resis- 
tance to the United States shall have been suppressed in the State.'' 
So far from that happy condition having been achieved, the rebels 
had undisputed control of far more than half the territory of the 
State, during the whole time of these proceedings. The same section of 
this act also provides that the Marshal of the United States, (a civil 
officer) shall make an enrolment of citizens, preparatory to a procla- 
mation of the provisional Governor, calling upon the loyal people of 
the State to elect delegates to a Convention, to declare the will of the 
people, as to the re-establishment of a State Government. 

The third section of the act provides that the convention shall con- 
sist of as many members as both Houses of the last Constitutional 
State Legislature, to be apportioned by the provisional Governor among 
the counties, parishes or districts of the State, in proportion to the 
white population returned as electors by the Marshal, &c. 

On this point (Jcncral Banks says: " delegates to the Convention 
were apportioned to the white population, not of enrolled electors 
merely, but of the whole State, and the number fixed as prescribed 
by the Constitution and laws of the State applicable to Legislative 
Asscuublies." 

You may ask why, in the above paragraph, is the expression, 
" enrolled electors, " put in apposition to the words " the wiiole 
State"? It is because, in only a part of the State were electors en- 
rolled; for in the greater number of parishes, no enrollment was made, 
nor was any possible, as they were under the control of the rebel 
government; notwithstanding which, an election was gravely ordered 
to be held in every parish of the State, though impossible to be 
eftected; and a convention assembled under this order which pur- 
])()rted to represent all the parishes. 

On the 11th January, 1864, General Banks issued a proclamation 
" to the people of Louisiana," which said, " In pursuance of authority 
vested in me by the President of the United States,"— which it must 



To Hon. IIenry Winter Davis. 6 

be remembered was military autliority only — " and upon consultation 
with ^ many ^representative men of diflerent interests, being fully as 
sured that more than a tenth of th(! population desire the earliest 
possible restoration of Louisiana to the Union, I invite the loyal citi- 
zens of the State qualilied to vote in public affairs, as hereinafter pres- 
cribed, to assemble in the election precincts designated by law, or at 
such places as may lu^reafter be established, on the 22ud day of Feb- 
ruary, 1864, to cast their votes for the election of State officers herein 
named. 1. Governor. 2. Lieut. Governor. 3. Secretary of State. 
4. Treasurer. 5. Attorney General. G. Superintendent of Public 
Instruction. 1. Auditor of rublie Accounts^ — who shall, when elected, 
'or the time being, and until others are appointed, by competent 
authority, constitute the civil government of the State, under the 
Constitution and laws of Louisiana, except so much of the said Consti- 
tution and laws as recognize, regulate, or relate to slavery, &c." 

Two cai)ital errors must be considered in this declaration. In the 
first place the military power of the United States is only competent 
for military purposes, and cannot constitule a civil government of a 
State; and in the second place no sucli officers elected in such a way 
could be a civil government un(hM- the Constitution and laws of Louis- 
iana; because those enactments pointed out an entirely different 
mode for the election of officers. The result of the action prompted 
by General P>anks' [)roclanuition, was in accordance with these views; 
the form of election which was goiu' through with was considered 
by the President merely as the indication of a lit and projjcr person 
for the office of n:ilitary Governor, and the Commander in Chief of the 
Army and Navy conferred aninftirmal apitointment of that character 
upon Mr. llalm, who hnd lieeii retuiMK-d as having received a major- 
it v of the votes cast at that election. The commencement and the 
end therefore were purely military, and partook in no degree of a 
civil character. 

On the nth of March, ISOl, (xeniM-al Banks issued, from his Head 
Quarters, Department of the Gulf, " (^,eneral Orders No. 35." They 
said : " An election will be held on Monday, the 28th day of March, 
at 9 o'clock, A. M., in each of the Election Precincts established by 



6 Letter of Thomas J. Durant 

law in this State, for a choice of Delegates to a Convention to 
be held for the revision and amendment of the Constitution of 
Louisiana." 

One might suppose from this, that there was no opposition to the 
authority of the United States in Louisiana ; and that to hold an 
election in each of the precincts established by law in the State, was 
a matter that no Union man would hesitate to undertake. Yet, 
the fact was, that in more than one-half of all the Parishes of the 
State no avowed adherent of the National cause could be found. It 
will be observed that this Order is for a revision of the Constitution 
existing, which harmonizes with the prior Proclamation of the 
General, declaring the Constitution and Laws of the State (except 
such as related to slavery) to be in force. The second section of the 
General Orders No. 35 declares that "the several Parishes shall be 
entitled to elect the number of Delegates herein assigned to each, upon 
the basis of white population exhibited by the Census of 18G0, to be 
chosen in each Parish, on one ticket, by the qualified voters of the 
Parish, except in the Parish of Orleans, in which Parish the election 
shall be held in the several representative districts established by 
law, for the number of Delegates herein assigned to each District, to 
be chosen on one ticket by the (jualificd voters of the District, as 
follows, to-wit :" then going on to name each one of the forty-eight 
Parishes of the State, stating the white po[)uhition of each from the 
Census of 1860, and assigning to each its number of Delegates in the 
Convention ; making an aggregate of one hundred and fifty members, 
of which sixty-three were assigned to the parish and city of New 
Orleans. 

This was done under a distinct declaration tliat the Constitution 
and Laws of Louisiana — except in regard to slavery — were in force ; 
and is followed by the statement, in the letter to Senator Lane, that 
" the number of Delegates was fixed as prescribed by the Constitution 
and Laws of the State, applicable to Legislative Assemblies." 

The Constitution of Louisiana of 1852, article 8, says : "Repre- 
sentation in the House of Representatives shall be equal and uniform 
and shall be regulated and ascertained by the total population of each 
of the several Parishes of the State." 



To Hon. Henry Winter Davis. t 

Article 15 says — "The Legislature in every year in which they 
shall apportion Representatives shall divide the State into Senatorial 
Districts. No Parish shall be divided in the formation of a Senatorial 
District — the Parish of Orleans excepted." ' 

Thus the constitutional basis of representation in both branches of 
the General Assembly of Louisiana was the total population — white 
and black — of each parish ; while General Orders No. 35, make the 
basis of representation in the Convention, the wJiite population only. 

The article 8 of the Constitution further says: " the first enumera- 
tion by the State authorities under this Constitution shall be made 
in the year 1853, the second in 1858, the third in 1865." 

"At the first regular session of the Legislature after the making of 
each enumeration, the Legislature shall apportion the representation, 
among the several Parishes and election Districts, on the basis of the 
total population as aforesaid. A representative number shall be fixed, 
and each parish and election district shall have as many representa- 
tives as its' aggregate population shall entitle it to, and an additional 
representative for any fraction exceeding one-half the representative 
number. The number of Representatives shall not be more than one 
hundred, nor less than seventy." 

Article 15, also says : "The number of Senators shall be thirty-two, 
and they shall be apportioned among the Senatorial Districts accord- 
ing to the total population contained in the several districts : Pro- 
vided, that no Parish shall be entitled to more than five Senators." 

The number of Senators is fixed at thirty-two ; the number of 
Representatives may vary, at the will of the Legislature, from seventy 
to one hundred. 

After the enumeration of 1858, the Legislature, by an act, approved 
March 4, 1859, divided the State into twenty-one Senatorial Districts, 
electing thirty -two Senators, of which five were assigned to the city of 
New Orleans; it adopted a representative number of six thousand 
nine hundred and twenty, and apportioned ninety-eight representa- 
tives among the forty-eight parishes, assigning to the city of New 
Orleans twenty, and to the remainder of the parish — lying on the right 
bank of the river — one. 



8 Letter of Thomas J. Durant 

The General Orders No. 35, established a rl^presentative number of 
two thousand two hundred and fifty-one, and the basis of the white 
population. The Constitution and laws of Louisiana esta)>lished a 
representative number of six thousand nine hundrcnl and twenty 
and the basis of the total population. 

The General Orders No. 35, assiii'tied to New Orleans city and 
parish sixty-three Delegates ; tlie constitution and laws of Louisiana 
gave them twenty-six. 

By General Orders No. 35, the Convention was to be composed of 
one hundred and fifty Delegates. By the constitution and laws of 
Louisiana, it should have consisted of one hundred and thirty mem 
bers only. 

Thus General Banks's order for llie election of Delegates to the 
Constitutional Convcuition was an absolute d(^piirturo from the 
Constitution and laws of the State, and in plain contradiction .of the 
Act of Congress. 

He apportioned the representation on the white population only, 
instead of the whole. 

He ordered one hundred and fifty members to be elected to the 
Convention instead of one hundred and thirty. 

He obliterated the Senatorial Districts and the legal provision for 
their representation. 

He gave New Orleans sixty-three Delegates instead of twenty-six. 

He essentially changed the reprcsentation'of the other parishes. 

Nor was all this done without deliberation. Before issuing General 
Orders No. 35, he appointed a committee consisting of Rufus K. 
Howell, Alfred Shaw and James Ready, three citizens of New 
Orleans, " to consider the (piostions connected with the calling a 
State Ccunvention and the election of Delegates." In their report to 
the General, made on the 3d jNlarch, 1864, the Committee say, their 
attention was directed hy libn to the following (piestions : 

1. The basis of representation. 

2. The election of Delegates Ity districts, or by general ticket. 

3. The census upon which the election of Delegates is to be appor- 
tioned to the various i)arislies of the States. 



To Hon. Henry Winter Davis. 9 

4. The number of Members. 

5. The number of people to be represented by each represen- 
tative. 

6. The apportionment to each District. 

*l. The question of residence— that is, whether a Delegate must 
necessarily be a resident of the District for which he is chosen. 

Now, inasmuch as all these questions were definitively settled 
by the Constitution and laws of Louisiana, proclaimed to be in 
force, the fact that the Major General Commanding referred their 
solution to a committee, showed that he did not intend to be bound 
either by law or Constitution. The report of the committee solved 
most of the questions in a sense contrary to the Constitution and the 
laws, and their report was, in its leading features, adopted by the 
Major General and embodied in his General Orders No. 35 ; and 
therefore, he cannot but be in error in saying that the Constitution 
and laws were followed. 

Although the General Orders No. 35 directed, as has been seen, 
an election of Delegates in each of the fo^-ty-eight parishes of the 
State, yet it was well known that in a majority of parishes no elections 
could bo held. Accordingly the third paragraph of said Orders 
states that " Any parish not noiv within the lines of the army shall 
be entitled to send Delegates as herein specified, at any time before 
the dissolution of the Convention, should such parish be brought 
within the lines of the army :" which is an acknowledgment that the 
programme announced could not be carried out, though silence is 
preserved as to the real extent of this impracticability. 

Wheit the Convention assembled in New Orleans, on the 6th 
April, "S. Wrotnoski, Secretary of State," reported that members 
had been returned as elected from the following parishes — the 
number of votes in the parishes not being given — viz : Orleans, 
Ascension, Assumption, East Baton Rouge, West Baton Rouge, 
Concordia. East Feliciana, Jefferson, Lafourche, Madison, Plaquemines, 
St. Bernard, St. James, St. John the Baptist, St. Mary, Terrebonne — 
(see journal of the Convention pp. 3 and 4) — in all sixteen parishes out 
of the forty-eight into which the State is divided. The number of 
Delegates as thus returned was, from the parish and city of New 

2 



10 Letter of Thomas J. Durant 

Orleans, sixty-three ; from the fifteen other parishes twenty-seven, 
making a total of ninety ; and of these eighty-two answered to their 
names on roll-call. 

On the 7th iVpril, the Committee on Credentials reported as duly 
elected, not only the Delegates from the Parishes reported by the 
Secretary of State, " but also, two from the Parish of Avoyelles and 
four from the Parish of Rapides," increasing the number of parishes 
said to be represented to eighteen ; and the number of members 
entitled to seats to ninety-six ; but the number who voted, the same 
day, on the election of a President of the Convention was only 
eighty- four. 

The vote in the Convention on the adoption of the Constitution as a 
whole, was in the aggregate eighty-two, of which sixty-six were in the 
affirmative, and sixteen in the negative — see journal p. 165; and as the 
whole number of Delegates ordered to be elected by " General Qrders 
No. 35" was one hundred and fifty, and as a quorum to do business 
consisted of not less than seventy-six, it appears the Constitution 
was finally adopted by a vote less by ten than a quorum, and only 
equal to the number of Delegates from New Orleans, with three 
Delegates from the country ; so that New Orleans and Jefferson, 
which are as closely allied as New York and Brooklyn, were enough 
to constitute this " regenerated" State. 

On the report of the Committee on Enrolment, the number of mem- 
bers who signed the Constitution was only sixty, being sixteen less 
than a quorum. See Journal, p. 1*10. 

The Convention has not been dissolved, a resolution having been 
adopted, sixty-two to fourteen — ^a bare quorum — to re-assemble again 
in certain contingencies — same page. 

One curious feature may be noticed here, although not strictly 
within the scope of the present branch of the inquiry. On the last 
day of the sitting of the Convention, Mr. Fish offered a series of patri- 
otic and loyal resolutions, referring in a preamble to the Secession 
Convention and its treasonable Ordinance of separation ; and declar- 
ing, 1-t, that the people denounce the doctrine of State Rights and 
sovereignty, interpreted as a justification of secession ; 2d, declaring 
a primar}'^ allegiance to the United States, and that the ordinance of 



To IIoN. Henry Winter Davis. 11 

secession was a nullity; 3d, declaring the desire of the Convention that 
Slavery should be abolished through the whole country by an amend- 
ment to the Constitution of the United States. These excellent reso- 
lutions were, indeed, adopted, but by only sixty-eight in the affirmative 
and eight in the negative; thus showing that not even a number 
equal to a bare quorum of the Convention could bQ found to endorse 
the principles laid down. 

On recurring to the report of the Secretary of State, and to that of 
the Committee on Credentials above referred to, it will be found that 
S. A. Lobdell is returned as elected from the Parish of West Baton 
Rouge, but he never, as I am informed, appeared in the Convention. 
It is difficult to understand how an election could have been held in 
that parish, or in Avoyelles, Rapides or Madison, nor have the public 
ever had any official* information on that subject. Certain it is, how- 
ever, that when the Constitution was submitted to the popular vote 
for ratification, no votes were cast, according to the Proclamation of 
Governor Hahn of 19th September, 1864, in the parishes of West Baton 
Rouge, Avoyelles or Rapides, either for or against the Constitution; so 
that no election could be held at that time in these parishes which it 
was maintained had sent seven members to the Convention. On the 
other hand, by the same Proclamation of the 19th September, it is de- 
clared that the question of ratification was voted upon in the parishes 
of Pointe Coupee, St. Martin, St. Charles, Iberville and St. Landry, 
though those parishes were not returned as having elected any mem" 
bers to the Convention, and no members sat in it from those parishes. 

It is said by General Banks, in further enlarging upon the regular- 
ity of proceedings that "Commissioners] of Election have been ap- 
pointed according to the laws and usages of the State.'" 

In this, it seems to me, there is also an error. The statute of March 
19, 185T, provides for elections in the parish and city of Nev/ Orleans. 
It directs that the election precincts, at that time established by law 
in New Orleans, should not be changed except by an Act of the Le- 
gislature, and that there should be two election precincts in each 
ward of the city, except the^seventh, in which'[;there should be three. 
The act further provided for the creation of a Board of Commissioners 
of Election, to be composed of the Mayor of the City of New Orleans, 



12 Letter of Thomas J. Durant 

the Register of Voters of said city, the Attorney General of the State, 
and two citizens of New Orleans to be appointed by the Governor of 
the State. The duty of this Board was declared to be to appoint all 
the Commissioners of Election, to preside in the various precincts of 
the ci-t}' established by law. 

No such Board of Commissioners as the law contemplates existed 
here. It is true a body of five citizens called a Board of Commission- 
ers of Elections, was in being, but none of them were appointed ac- 
cording to law. They were B. L. Lynch, Esq., Attorney General, J. R. 
Terry, Register of Voters, S. Hoyt, Mayor, Charles Leaumont and E. 
Ames, citizens of-New Orleans. 

B. L. Lynch, Esq., Attorney General, was elected under the mili" 
tary order of the Major General commanding the Department of the 
Gulf; he was not therefore elected according to the Constitution and 
laws of Louisiana, which have nothing to do with military officers in 
election matters. Mr. Lynch therefore holds office from the military 
powers of the United States, not from the laws of Louisiana; he is 
not a civil officer of the State. 

J. R. Terry holds his office of Register of Voters for New Orleans 
by the appointment of M, Hahn, Governor. ^Mr. Hahn is not and 
cannot be civil Governor of Louisiana, for he was elected under the 
military order of General Banks, who has no power under the Consti- 
tution and laws of the State to order elections. 

The article 11 of the Constitution of Louisiana, declared by General 
Banks to be in force except in regard to slavery, says: "The Legis- 
lature shall provide by law that the names and residence of all 
qualified electors in the city of New Orleans shall be registered, in 
order to entitle them to vote." 

The act of March 20th, 1856, p. 131, section 1, says that there shall 
be appointed by the Governor of this State, by and with the advice of 
the Senate, for four years from the fourth Monday of January, 1856, a 
discreet citizen of the city of New Orleans as Register of the names 
and residence of the qualified electors of said city." The lav.' is, that 
a civil Governor shall make the appointment by and with the advice 
of the Senate. The fact is that the Register is appointed by a 
jniltary Governor without a Senate. Mr. Terry then is simply ft 



To Hon. Henry "Winter Davis. 13 

military appointee to register voters. He is not a Register of Voters 
according to the Constitution and laws of Louisiana. 

S. Hoyt, the Mayor of the city, is a purely military appointment, 
placed in office l)y the Major General commanding, the charter of the 
city, requiring the election of a Ma3^or by the people, having been 
totally disregarded. 

Messrs. Leaumont and Ames, the two citizens on the board, having 
been selected by one who has no authority, except as military Gover- 
nor, have no powers derived from the laws of the State; and are 
therefore no such members of the Board of Commissioners as the law 
requires. 

It is clear, that such a Board as this could make no pretension to 
be organized according to law, and therefore no commissioners ap- 
pointed by it would be "legal," in the true civil meaning of the 
word; they would derive all their powers form the military authority 
of the United States. 

The Board thus constituted, proceeded to perform the acts required 
by the laws of the State. 

On the 29lh of Aug.ust, 1804,. the aforesaid Board of Election Com- 
missioners met, and prepared a publication in the usual form, con- 
taining a list of the precincts, the number of polls in each precinct 
and the names of the commissioners of election for each poll to be 
held for the election of 5th September, on which day the Constitution 
was to be submitted to the popular vote; when also in pursuance of 
an ordinance of the Convention, five members of Congress were to be 
chosen; and under a proclamation issued on the 30th day of July, 
1864, by " J. Madison Wells, Lieutenant and acting Governor of the 
State of Louisiana," members of the General Assembly were also to 
be chosen. The publication of the Board of Commissioners, signed 
by their Secretary, Charles Leaumont, appeared in the New Orleans 
papers on the 31st August, and it designated only those polls and 
precincts which were established by law. 

But on the 4th September, the day preceding the election, the 
publication was changed, and four more polls, not established by law, 
were added, and styled poll No. 3, first precinct, corner of Terpsichore 
and Chippewa; poll No. 3, second precinct, corner of Euphrosyne 



l4 Letter of Thomas J. Durant 

and Calliope; poll No. 3, Ninth precinct, corner of Robertson and 
Canal streets; and poll No. 3, seventeenth precinct, Lakehouse. 
This changed advertisement was put over the signature of the Sec- 
retary of the Board, Charles Leaumont, as though it wltc an ofl&cial 
act. 

On the 2Gth September, a letter having been addressed to the Sec- 
retary, Mr. Leaumont, by E. Abcll, Esq., one of the candidates for 
Congress, enquiring by what authority these four additional polls had 
been created and advertised, Mr. Leaumont deemed it proper to call 
a meeting of the Board, which was accordingly held on the 5th of 
October, all the members being present except -S. Hoyt, the acting 
Mayor of New Orleans under military appointment, when on con" 
sidering Mr. Abell's enquiry, "the Secretary was ordered to^answer 
that the notices and changes wdiich he observed, creating four other 
polls, more specifically described in his communication, though put 
over the official signature of the Secretary of said_^Board, was not the 
act of said Board, as they had no meeting or action taken on the 
matter after the meeting of the 29th of August, 1864, at which meet- 
ing no reference was made to the opening or creation of any other 
polls but those designated in the act of 1857'. 

And now as a part of these minutes the Secretary being called 
upon to account for this unathorized change, made by the creation of 
the above named four polls, as published in the Bee and Era of the 
3rd September, 1864, over his officiaPsignature, solemnly pronounces 
it to have been done without his consent, will or knowledge, and says 
that at the time of the above change appearing in the papers, he, 
along with Dr. Ames, upon being informed of that fact, did then and 
there protest." 

Such arc the official proccedingSj of the Board, They speak for 
themselves. Their official publication had been perverted and falsi- 
fied, none of those present appeared to know by whom. When such 
things can be done with success, what assurance or guarantee have 
the people of fairness in the election ? or how can it properly be said 
that such an election was conducted according to the laws of the 
State ? 



To Hon. Henry Winter Davis. 16 

By the oflScial returns of the election pubUshed in the True Delta of 

September 7th, it appears that the following votes were polled at the 

four extra legal polls interpolated upon the advertisement of the 

Board of Commissioners, on the question of the adoption of the 

Constitution. 

Poll No. 3, First Precinct • 343 

Poll No. 3, Second do 29 

Poll No. 3, Ninth do 145 

Poll No. 3, Seventeenth do (none reported,) 

sn 

These votes were not cast according to the Constitution and laws of 
Louisiana. 

The General, in his letter to Senator Lane," further says, " the 
Delegates were chosen by white male citizens of the United States, 
21 years of age, who had the qualifications required by law." 

".Soldiers who had enlisted in the Army from this State were per- 
mitted to vote at the polls opened at their respective commands by 
regularly appointed Commissioners of Elections, not by Officers, 
where it was impossible for them to vote in established legal 
Precincts." 

The General pays a just tribute to the merits of the soldiers who 
have enlisted from this State, when, in another part of his letter 
he says — 

"Nearly ten thousand white troops, and fifteen thousand colored 
soldiers have been enlisted here in the armies of the Union. They 
ore among the best men of the service. Every battle field from the 
llio Grande to Port Hudson and Florida has been honored by their 
valor and hallowed by their blood." 

Every patriot will say with the General, all honor to the brave 
soldiers of Louisiana. These twenty-five thousand men were as well 
entitled to participate in the reorganization of civil government as any 
other equal body of men to be found ; fifteen thousand of them were, 
most likely, all native citizens of the United States. But by the laws 
of Louisiana, which alone are in question here, not One of the twenty- 
five thousand was a qualified elector. The 12th Article of the 
Constitution says . " No soldier, seaman or marine, in the Army or 



16 Letter of Thomas J. Durant 

Navy of the Uuited States, shall be entitled to vote at any election 
in this State." 

How many soldiers voted, no means are at hand to ascertain ; their 
votes are not distinguished from others in any official report. 

The qualifications of voters are prescribed by the 10th Article of 
the Constitution of Louisiana of 1852, which says : " Every free white 
male who has attained the age of twenty-one years, and who has 
been a resident of the State twelve months next preceding the 
election, and the last six months thereof in the Parish in which he 
offers to vote, and who shall be a citizen of the United States, shall 
have the right of voting." 

In the city of New Orleans, it is required that the voter shall be 
registered more than three days before the- election, as during the 
three days preceding, the Office of the Register must be closed. 

The Constitution submitted to vote on the 5th September, in defining 
the qualifications of electors, in Article 14, makes no change in the 
above except as to residence in the Parish, which is reduced to three 
months. 

It is publicly stated, and by many believed, in New Orleans, that 
persons were registered as voters, who had resided only six months 
in the State, and one month in the Parish, and this too Avithout proof 
of citizenship. I have seen a statement to this effect sworn to before 
a Justice of the Peace by one who was a clerk in the Registers' office, 
but have no means of ascertaining what number of voters were so 
registered ; however, if the statement be true, of which I have no 
doubt, the registration was illegal, and the whole subject ought to be 
subjected to a satisfactory investigation. 

Enough has been shown, in what goes before, to demonstrate that 
the laws of Louisiana with regard to elections have not been complied 
with, but that there have been departures from them of the most 
essential character. 

The Act of Congress of the last session, which the President did not 
sign, provided that at elections "no person who has held or exer- 
cised any office. Civil or Military, State or Confederate, under the rebel 
usurpation, or who have voluntarily borne arms against the United 
States, shall vote or be eligible to be elected as Delegate at such elec- 



To HOxV. Henry Winter Davis. It 

tion." And in reference to this feature General Banks' letter says — 
" so far as is known no person who has held office under the Confede- 
rate Government, or who has borne arms against the United States, 
has participated in these elections." 

This docs not appear to meet the difficulty. Congress desired these 
persons to be excluded from voting, and serving in the Convention. 
The rules adopted on the subject of the call of the Convention in 
Louisiana made no provision for excluding them either as Voters or 
Delegates. As the vote was by ballot, no means are now at hand of 
knowing whether any such voted at the elections. But it is known 
that several Avho would have been excluded by the Act of Congress,, 
held seats as Delegates in the Convention. 

Nor is any such exclusion as the above extract from the Act of 
Congress provides for, embodied in the new Constitution of Louisiana. 
The reason of this omission is explained by General Banks' letter. 
He says — "The only provision of the bill not embodied in the Consti- 
tution is that which denies the elective franchise to men who have 
borne arms against the United States. The Convention would have 
readily adopted this provision, but, although the State, under the 
Constitution, establishes the condition of suffrage even for Members 
of Congress, it was impracticable for Louisiana, to overthrow the 
policy of the General Government in this respect. The principal 
officer in the Treasury in New Orleans, held a commission in the 
Rebel army, and the Quarter Master and the Chiefs of other Depart- 
ments have been ordered to employ in public services deserters from 
the enemy." 

There appears to be an error in this statement ; the policy of the 
General Government cannot be held to be such as is declared, for the 
Act of Congress, tlie only means we have of ascertaining its policy, 
is entirely different. The policy of the Executive, may be correctly 
stated by General Banks, but the Executive is not the General Govern- 
ment ; and the reason assigned for the omission of the Convention, is 
therefore insufficient. This difference between the Act of Congress and 
the new Louisiana Constitution is of an important character. Under 
the Act of Congress it is designed to put the State government in 
the hands of the real friends of the Union, whereas, if the govern- 

3 



18 Letter of Thomas J. Durant . 

ment of the new Constitution could be spread over the whole State, 
there is danger that the result would be of quite another kind. 

The entire want of compliance with the forms required by the 
Constitution and laws of Louisiana, in the various orders and elections 
which have preceded the formation of this Constitution have been 
insistedon, not merely on account of their own importance, but be- 
cause the attempt is made to recommend the instrument to favor by 
alleging that these forms have been complied with. 

The far weightier objections are, that all these movements were 
impelled by mere Military authority ; that the resulting Constitution 
is no more than a Military rescript ; that the whole proceedings has 
been in opposition to the will of Congress, which alone, possesses the 
constitutional power to act on the subject ; that not one-half of the 
Parishes or Territory of the State had any thing to do, even nomi- 
nally, with the Elections or the Convention ; and that of that portion 
of the State, which did participate, there is nothing to guide us but 
uncertain conjecture as to the amount of population ; that the Pa- 
rishes nominally represented in these elections and the Convention 
are only partially controlled by the National arms; and that no satis- 
factory census of their population, whereon to base represention in a 
Covention, has been taken. 

General Bank;?, devotes a portion of his letter to an estimate of the 
population of the State. On this subject, it must be premised that 
if the rebellion of the State has produced no change in its relations to 
the General Government, if its Constitution survived, and, without any 
enabling Act of Congress, the citizens, or a fractiion of their number 
can send Senators and Representatives to Congress, and cast an 
electoral vote for President, then the question of population becomes 
of no importance, for no matter how much it may have been 
reduced, the rights of the State to representation under the census 
remain unimpaired, unless the causes effecting that reduction have also 
changed the relations of the State. 

But if such be not the condition of the political relations of the in- 
habitants of Louisiana, if the State has forfeited its rights by rebel- 
lion, as we believe, then there must be an enabling act, and an enu- 
meration of the people, not conjectural but actual. 



To Hon. Henry Winter Davis. 19 

General Banks says: "the statement that Louisiana does not control 
half the population or half the territory of the State is very far from 
being true." 

Let us examine the question. The Constitution framed by the Con 
vention assembled under General Orders No. 35, was submitted to a 
vote of the people of "this State", on the first Monday of September 
1864. 

On the nineteenth of the same month Mr. Halin, Military Governor 
of Louisiana, issued a Proclamation, declaring the official vote "cast 
in the State, as far as received for and against the Constitution ac- 
cording to returns received at the office of the Secretary of State," to 
be as follows : 

FOB. AGAINST. 

Orleans 4,6G2 789 

Pointe Coupee 65 85 

St. Martin 34 — 

St. Mary 99 ~ 

Jefferson 328 124 

Plaquemines 47 70 

St. Bernard 31 118 

St. Charles 30 7 

St. John the Baptist. ... 9 — 

St. James — 7 

Ascension 239 ,27 

Assumption 210 ' 9 

Lafourche 247 70 

Terrebonne 258 213 

Iberville 26 2 

East Baton Rouge 104 , 35 

East Feliciana 159 5 

St. Landry 32 — 

Concordia 247 — 

Madison 9 — 



6,836 1,566 

In looking at this table, it is found, that the vote in favor of the Con- 
stitution in Orleans, is greater than the aggregate of all other votes, 
both for and against the Constitution, so that the State is made by 
the city alone, and would have been so made had every vote outside 
of it, been unanimously cast against the Constitution. Now it is pre- 
cisely in New Orleans, there is the strongest reason for believing that 
influence and patronage carried the election, and where a Congres- 



20 Letter of Thomas J. DugANT 

sional investigation would most probably show that tlie majority con 
sisted of electors who were not duly qualified, and that the influences 
at work overpowered dissent. 

When you look for the above named parishes on the map, you will 
find them all, except St. Martin, St. Mary, Assumption, Lafojirche, 
Terrebonne and St. Landry (six in all), lying on both sides of the 
^Mississippi river; and inquiry will assure you that in most of those 
above Jefferson, but little more is possessed by us, than the immediate 
bank of the river; while in regard to St. Martin, St. Mary and St. Lan- 
dry you will not find that we control one half of cither. 

The following statement of the area of each of the above named 
parishes, except Orleans, is drawn from Lippincott's Gazeteer, pub- 
lished in 1855, which is believed to be substantially correct. 

SQUARE MILES. 

Orleans (estimated from Latourette's Map) 180 

Pointe Coupee GOO 

St. Martin 750 

St. Mary 860 

Jefferson , 384 

Plaquemines 900 

St. Bernard 620 

St. Charles 340 

St. John the Baptist 200 

St. James 330 

Ascension 420 

Assumption 320 

Lafourche 1,200 

Terrebonne 1640 

Iberville 450 

East Baton Rouge 500 . 

East Feliciana 480 

St. Landry 2,200 

Concordia 190 

Madison 640 

13,804 
Now the whole area of the State of Louisiana, according to the Amer- 
ican Almanac, Boston, 1861, is 41,346 

Deduct the above Parishes 13,804 

Leaves 21,542 

Showing that the area of all the parishes which voted on the Con- 



To Hon. Henry Winter Davis. 21 

stitution does not, in the aggregate, much exceed one third of the en- 
tire area of the State, and of this portion we have not the actual con- 
trol of more than a half, even if so much. 

It is impossible for any one to say, with accuracy, what the popu- 
lation of T.ouisiana is, at the present time. It might be taken as a fair 
presumption that it has deci'eased in about equal proportions in all 
parts of the State, and in that case, by far the greater part of the po- 
pulation is under the dominion of the rebel Governor Allen. 

The letter of General Banks controverts this theory of equal dimi- 
nution of the population and insists that the decrease has been greater 
outside of the Union lines than inside : a conjecture which may be 
right or wrong, but nothing else than an enumeration can determine 
which it is. 

According to the United States Census of 1860 and the Report of the 
State Auditor of Public Accounts made to the Legislature .of Louisi- 
ana in January 1862, the population of those parishes, which according 
to Governor Hahn's Proclamation recently voted on the Constitution, 
was as follows : 

U. S. CENSUS 18G0. .S. CENSUS 1861. 

Orleans 114,491 137,228 

PointeCoupee 17,118 16,359 

St. Martin 12,614 15,065 

St. Marv ' 16,816 16,157 

Jefferson 15,312 13,111 

Plaquemines 8,494 11,243 

St. Bernard 4,016 3,421 

St. Charles 5,291 4,192 

St. John the Baptist 1,930 1,216 

St. James 11,499 11,568 

Ascension 11,484 11,143 

Assumption 15,319 14,601 

Lafourche 14,044 13,768 

Terrebonne 12,091 . 10,188 

Iberville 14,661 15,833 

East Baton Rouge 16,046 15,104 

East Feliciana 14,691 14,294 

St. Landrv 23,104 26,423 

Concordia" 13,805 13,238 

Madison 14,133 : 13,190 



423,811 386,360 

The above will show the inaccuracy of what purports to be official 



2 Letter of Thomas J. Dukant 

ensuses, taken within a few months of one another. Let us take as 
ur basis the United States Census. As the total population by 

bat was 700,802 

•educt the above Parishes 423,811 

276,991 
This, at the first glance, admitting the population to have remained 
nehanged, would seem to show a large majority within the par- 
ches which voted on the Constitution. But this appearance will van 
5h when it is considered, that in a number of those parishes, though 
eal or pretended elections may have been held in some points Of 
hem, yet that the control of our forces does not extend over a third 
if their territory; such are : 

Point Coupee 17,718 

St . Martin 12,674 

St. Mary 16,816 

Iberville 14,b61 

East Baton Kouge 16,046 

East Feliciana 14,697 

St. Landry 23,104 

Concordia 12,805 

Madison 14,133 

143,654 
Of those Parishes, we do not hold, on the average, one-third of 
he area; but assuming that proportion, then the population being 
mchanged, we would have a right to count one third of it, i. e., 
17,884 as within our lines, leaving 95,770 outside, which, deducted 
'rom the aggregate of tlic twenty Parishes above, leaves 328,157, 
ess than one half of the population of 1860. 

I, of course, am well aware that the pupulation has not remained 
mchanged; and I am equally well convinced that the proportions 
ire not such as arc stated, but that, in point of fact, there is a 
nuch smaller ])roportion within tlie Union lines than allowed 
ibovc : all wliich serves to show that, as a preliminary to organi- 
sation, a trustworthy census should be taken. . 

I now give the votes cast in these twenty Parishes in the Presi- 
lential election of 1860, and in the vote for tlic ratification of the 
^lonstitution in 1864, 



To Hox. Hexry Winter Davis. 23 

The vote of 1800 is taken from the New Orleans Crescent, Decem- 
ber -Ith, of that year, and that of 18G4, from the New Orleans True 
Delta of 22nd September. 

1860 18G4 



Orleans 10,S(>T 5,451 

Point Coupee 890 150 

St. Martin 1,1«8 34 

St. Mary 942 104 

Jefferson- 1,588 452 

Plaquemines 448 IJT 

St. Bernard 281 149 

St. Charles 163 37 

St. John Baptist 392 , ' 9 

St. James 560 ,7 

Ascension TT9 266 

Assumption 1,022 219 

Lafourche 1,047 317 

Terrebonne 965 471 

Iberville;...-'. 865 28 

East Baton Kouge 1,195 139 

East Feliciana 785 164 

St Landry 1,866 32 

Concordia : 332 247 

Madison 519 9 



26,694 • 8,402 

Now, admittini;- all tlu; votes proclaimed as liavir*p; been cast on 
the 5th Septcmlier last to Ix; g-ciiuine, which many are very far 
from belciving-, compare tlu; vote of 1864 with that of 1860, and 
we find the former is not one third of the latter : and if wo should 
suppose that the vote in the whole i^tate — the Convention election 
was ordered to take place in every Parish — has fallen ofT in the 
same ratio us in the above named Parishes, then the vote in 
Parishes where no election was held on the 5th September last, 
would be found to be 7,530, making- an aggregate of (by supposi- 
tion) 15,932 votes in the entire State at this time. This result, 
however, is entirely inconsistent with what I believe to be the facts 
of the case, and also with the estimates contained in Gen. Banks's 
letter. 

That letter tells ns that from forty-two to forty-five thousand men 
have eidisted from Louisiana in the rebel armies. His sources of 
information are probably correct ; and if all these were voters, 



Letter of Thomas J. Durant 

there would be left only eight thousand in the State, as the tota^ 
vote polled on the Presidential election of 1860 was 50,510, 
whereas there must be, according to the estimate made above, 
nearly sixteen thousand. So that it is impossible to arrive at any 
satisfactory conclusion either as to the number of voters or the popu- 
lation by any estimate or conjecture. This becomes more apparent 
when we learn further from the General's letter, that ten thousand 
white men have enlisted in the National Army, making a total en- 
listment (by supposition) in the two Armies of fifty-two to fifty- 
five thousand men, far more than the whole number of voters in 
1860 ; and yet when these are disposed of, for the forty-two to forty- 
five thousan'd rebel soldiers or voters are all out of the State, we still 
have some sixteen thousand left; such results demonstrate the fatal 
errors of the estimate and must serve to convince all, that no 
means have been adopted to ascertain with reasonable accuracy the 
number of electors in the State and, and not even of that portion of 
them within the Union lines, or which can, in any degree be 
deemed satisfactory by one who seeks correct or safe results. 

General Banks avows the belief that from f<n-ty-two to forty-five 
thousand men, most of whom he says were politicians — meaning I 
presume voters — left the State as soldiers in the rebel Arlny. That 
one-fourth of the slaves have perished ; and as the whole number 
by the census of 1850 was 331,126 ; the number who have thus dis- 
appeared is 87,931. That a numlier of negroes, equal to the' rebel 
enlistments, accompanied their masters, or fled with their owners 
to surrounding States, And that the dimunition of the white popu- 
lation is nearly equal to the loss among the blacks. If I rightly 
understand the General,' then, he estimates a total decrease of popu- 
lation in the State of 265,802: but this is not his complete meaning, 
for he says immediately afterwards, that the entire population of 
the State at tlio present time is 451,000, of which number he thinks 
that two thirds are within the Union lines. Two thirds of the 
number stated are 300,700, about; and leaves only 150,300, in the 
remainder of the State; such estimates are not supported by any 
sound conjectures, and even if they were are not a proper basis to 
place reconstruction upon. If there are really such large number 
of persons now within our lines how is it that the Constitution re" 



To Hon. Henry Winter Davis. 25 

ceived so meagre a vote as 8,402, when it is pretended we have a 
population of 300,100 ? 

But while these estimates are claimed by General Banks to be 
correct, we find a Convention assembled under his General Orders 
No. 35, assuming the powers of a Legislature, dividing the whole 
State into five Congressional Districts, as if they controlled it all, and 
actually causing to be elected five members of Congress, the number 
to which only the total Census population of 708,002 was entitled; 
when the electors in all of them did not reach, at the election of 5th 
September, 1864, eight thousand three hundred. 

On the whole an impartial examination of the statements of General 
Banks in regard to the populatian of Louisiana, will fail to bring con- 
viction to the mind of their accurac3^ They are, indeed, mere conjec- 
tures. They may possibly be right, but they are probably wrong, as 
many here believe. The nation cannot and ought not to permit the 
Executive, by military orders, to substitute conjectures for facts; or 
to cut the knot with the sword. 

Louisiana is not a State in the constitutional sense of that word. 
Her relations with the Government of the United States have been 
broken by rebellion. Slie is a State in insurrection; so decreed by 
Act of Congress, which the Executive cannot do away with. By the 
same power of Congress she must be reconstructed and readmitted, 
on such terms and conditions as may be found consistent with justice 
and safety. 

The foregoing remarks are devoted to a consideration of objects un- 
connected with tlie intrinsic merits of the Constitution itself; these, 
however. General Banks, has been pleased to speak of in terms of high 
laudation. 

Some of these claims to exalted praise are worthy to be examined. 
General Banks' letter says, speaking of the Convention : "And what 
was the result of their labors V 

"In a State which held 331,726 slaves, one half of its population in 
18G0, more than three quarters of whom had been specially excepted 
from the operation of the Proclamation of Emancipation, and were 
still held dc jure in bondage, the Convention declared by a majority 

4 



26 Letter op Thomas J. Durant 

of all the votes to which the State would have been entitled, if every 
Delegate had been present from every District in the State : 

" Instantaneous, universal, uncompensated, unconditional emanci- 
pation of slaves." 

The slave population above stated is less than one half of the total 
population in 1860. 

The slaves in the parishes excepted from the operation of the Presi- 
dent's Emancipation Proclamation of January 1, 1863, are stated in 
the Census to be, in 

St. Bernard 2,240 

Plaquemines 5,385 

Jefferson 5,120 

St. John the Baptist. 4,594 

St. Charles 4,182 

St. James 8,090 

Ascension , . 1,316 

Assumption 8,096 

Terrebonne 6,785 

Lafourche 6,395 

St. Mary 13,051 

St. Martin 1,358 

Orleans 14,484 

93,162 
Such Was the number excepted by the President from emancipa- 
tion : while the whole number in the State was 331,126 : so that far 
from there having been two thirds of the whole number, excepted from 
emancipation, there was but little more than one fourth of the whole 
number left in slavery. 

On page 74 ofthe official Journal of the proceedings of tlie donven- 
tion is found the vote on the adoption of the report of the Committee 
on Emancipation. It there appears that there were in the affirmatives 
seventy-two votes and in the negative, thirteen. The next day two 
more votes were added to the affirmative, making seventy-four. The 
whole number of members of which the Convention was ordered to 
consist was one hundred and fifty, of which seventy-six Was a bare 
majority, and also a quorum. Now, neither seventy-two votes, nor set- 
enty-four were "a majority of all the votes to which the State would 
have been entitled, if every Delegate had been present from evei'y 
District in the State," And more than that, there were Delegates 



To Hon, Henry Winter Davis. 2t 

present, as representing parishes in which, as hasalready been shown, 
no vote could be taken, when the Constitution was submitted to the 
people, and who therefore represented, legally speaking, no constitu- 
encies. 

The seventy-two or seventy-four Delegates, who voted for emancipa- 
tion, were, no doubt, in favor of the measure, but at the same time it 
must be remembered that the Convention had no choice in the matter. 
The Convention, Journal page 3, commences in these words^ 
" Wednesday, April 6, 1864, The Convention met in Liberty Hall, New 
Orleans, at 12 m., in pursuance of paragraph XI, of General Orders 
No. 35, of Major General N. P. Banks, the Commanding General of 
the Department." 

Those general orders, with the proclamation of January 11, were 
the parent of the Convention, They were purely Military in their 
authority. 

Martial Law had been proclaimed in the Department of the Gulf, 
on May 1, 1864, and exists up to the present day. The Proclamation 
of Major Ggneral Banks of January 11, 18C4, paragraph VI, said that, 
" The fundamental law of the State is Martial Law." 

The first paragraph of the same proclamation said that " the 
constitution and laws of Louisiana, which recognize, regulate or relate 
to slavery, must be "suspended, and they are therefore, and hereby 
declared to be inoperative and void." 

This was the abolition of slavery by Martial Law, to which the 
Convention itself was subject. What could that Body do, then, but 
abolish slavery, if they touched it at all ? And what difference would 
it have made had they not gone through the form of abolishing it ? 
None whatever, as all laws in relation to it had already been declared 
void by a power superior to that of the Convention. They only 
registered a decree, and can claim no merit for the ministerial act. 
The benefit was conferred by the Commander of the Department. 

The letter says further of the constitution. " It directs all men, 
white or black, to be Enrolled as Soldiers, for the public defense ! 
It makes all men equal before the law." 

The latter ought to be, no doubt, the consequence of the former ; 
but is it made so ? 



28 Letter of Thomas J. Durant 

If the assertion is intended to mean that men are made by the 
Constitution politically equal, it is a wide error. 

The 14th Article of the Constitution limits the right of suffrage to 
" white males." 

By the 8th Article only " qualified electors" are eligible to the 
General Assembly. 

By Article 98, all Civil Officers, State and Parish must be voters. 

The whole political power of the State is vested exclusively in the 
white citizens. 

On page *I1 of the Journal of the Convention, it appears, that the 
Report of the Committee on Emancipation being under consideration, 
Mr. AbcU offered the following proviso to section 3d. 

" Provided always, that the Legislature shall never pass any Act 
authorizing free negroes to vote, or to immigrate into this State under 
any pretence whatever." 

The question was divided at the words " to vote," when the first 
clause was carried by sixty-eight for, to fifteen against. 

The next day, the debate was cut off with the amendmente by the 
previous question, but the sense of the Convention, at that time, as to 
the extension of the suffrage to persons of African descent had been 
expressed by an emphatic majority against it. This was on the 10th 
day of May, 1864. 

It appears a change was produced in the sentiments of the Mem- 
bers of the Convention, by what influence is not publicly known. 
On the 23d of June, Mr. Gorlinski, offered the following as an addi- 
tional article to the general provisions, as follows : 

" The Legislature shall have power to pass laws, extending the 
right of suffrage to such persons, citizens of the United States, as by 
Military service, by taxation to support the Government, or by 
intellectual fitness, may be deemed entitled thereto." This was 
adopted by forty-eight in the affirmative, to thirty-two in the negative. 
See Journal p. 130. It is understood to have reference to persons of 
African descent, but is ambiguous, under the decision in the Dred 
Scott case. 

This is the only ap})roach towards equality — another word for 
justice, which is made in the Constitution. If the authors of tha 



To Hon, Henry Winter Davis. 29 

instrument were really in favor of the principle, why did they 
not establish it ? Can it be supposed, that a more opportune occa- 
sion will ever arrive, or one where there will be more generosity or 
less prejudice ? 

Let us suppose, that the Major General Commanding the Depart- 
ment of the Gulf, had called a Convention consisting exclusively of 
Members of the other race — that he had permitted only black citizens 
of the United States to vote — that he had allowed only his black 
soldiers to participate in the election — and that the Constitution had 
allowed only blacks to vote and hold any office, executive, legislative 
or judicial ? And that, he had proclaimed this as establishing 
equality before the law ? What answer would the white citizens have 
given to such an assertion ? It is easy to see, and equally easy to 
know, that a clause pm-mitting a future Legislature, to extend 
suffrage to whites, would hardly have been deemed very satisfactory 
by the latter. 

The Constitution does not make all men equal before the law; and 
no such claim can be consistently set up for it. 

Seventv five years ago the great Apostle of American democracy 
paid : "With what execration should the statesman bo loaded, who 
permitting one half the citizens thus to trample on the rights of the 
other, transforms those into despots, and these into enemies, des- 
troys the morals of the one and the amor patriai of the other." 

There are other oljjections to the Constitution which are rather of 
a moral than a political character, but equally worthy of considera- 
tion. 

On page 120 of the Journal it is found that Mr. Cutler offered the 
following, as one of the general provisions of the Constitution : 

"The Legislature shall have the power to license the selling of lot- 
tery tickets and the keeping of gambling houses; said houses in all 
cases shall be on the first floor and kept with open doors; but in all 
cases not less than ten thousand dollars per annum shall be levied 
as a license or tax on each vendor of lottery tickets and on each gam- 
bling house, and five hundred dollars on each tombola." 



30 Lettkb of Thomas J. Dubaxt. 

This was adopted by a vote of fifty seven to twenty three, and be- 
came article 116 of the Constitution. It is believed to be. the only in* 
stance in which a constitutional Convention has approved the vice of 
gambling. Congress, in its reconstruction Act, does not seem to have 
considered this feature, but would probably not have taken the same 
view of it as the Convention. It is probable, too, Congress would 
have differed from theview taken by the Convention of a proper or- 
ganization of the policeforce in New Orleans; for it may be found 
on page 128 of the Journal, that when the police question was before 
the Convention, "Mr. "Thorpe moved to amend by adding the words 
"and no one shall beappointed on the police, who shall have been 
mustered into the rebel army"; and this was laid on the table by a 
vote of fifty yeas to thirty one nays ! 

It is not diflicult to make a good Constitution, we liave so many to 
copy from; but it is difficult to make a State by a military order. Such 
a consummation cannot be eifected unless we are to see an American 
Congress deliberately abandon its functions, under Executive dictation. 

I remain, most respectfully. 

Your obedient servant, 

THOMAS J. DURANT. 



H87 81 













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